No. 13-6004/AF.U.S. v. Samuel A. WICKS.CCA
2013-08.On consideration of the petition for grant of review of
the decision of the United States Air Force Court of Criminal Appeals on appeal
by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby
granted on the following issue:

WHETHER THE AIR FORCE
COURT OF CRIMINAL APPEALS ERRED BY FINDING LAW ENFORCEMENT'S REPEATED WARRANTLESS
SEARCHES OF APPELLANT'S IPHONE DID NOT VIOLATE THE
FOURTH AMENDMENT.

A joint appendix will
be filed on or before August 20, 2013.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0668/AR.U.S. v. Gary L. LINDSEY.CCA 20110299.

PETITIONS
FOR RECONSIDERATION DENIED

No. 12-0616/AR.U.S. v. Timothy E. BENNITT.CCA 20100172.On consideration of Appellee's petition for reconsideration of the Court's
decision, 72 M.J. 266 (C.A.A.F.
2013), it is ordered that said
petition for reconsideration is hereby denied.

INTERLOCUTORY
ORDERS

No. 13-0664/MC.U.S. v. Andrew A. CAMPBELL.CCA 201200434.Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to August 19, 2013.

No. 13-0666/AR.U.S. v. Charles A. FOXX.CCA 20110272.Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to August 19, 2013.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-214

Tuesday, July 30,
2013

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0665/AR.U.S. v. James D. BOGUSKE.CCA 20120727.

No. 13-0666/AR.U.S. v. Charles A. FOXX.CCA 20110272.

No. 13-0667/AR.U.S. v. Bradley R. MEHRMAN.CCA 20110800.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-213

Monday, July 29, 2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No.
13-0466/NA.U.S. v. William G. MCKINLEY
III.CCA 201000120.

No. 13-0495/AR.U.S. v. Brandon M. CLARETT.CCA 20110733.

No.
13-0596/AR.U.S. v. Christopher R.
MCCLENDON.CCA 20110468.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0662/AF.U.S. v. Kim L. SHARPE.CCA S32011.

No. 13-0663/AF.U.S. v. Christian L. DAVIS.CCA 38077.

No. 13-0664/MC.U.S. v. Andrew A. CAMPBELL.CCA 201200434.

MANDATES
ISSUED

No. 13-0096/AR.U.S. v. Maurice S. WILSON.CCA 20110146.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-212

Friday, July 26, 2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0499/AF.U.S. v. Benny BROCKINGTON
III.CCA
S32089.

No. 13-0540/AR.U.S. v. Ryan E. BUSSEY.CCA 20110201.

No. 13-0553/AR.U.S. v. John C. KING.CCA 20120136.

No. 13-0556/AR.U.S. v. Kevin J. WEEDEN.CCA 20120623.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0657/AR.U.S. v. Mark P. HUNT.CCA 20110604.

No. 13-0658/AR.U.S. v. Philip B. HUNT.CCA 20121155.

No. 13-0659/AR.U.S. v. Derek J. FORIT.CCA 20110537.

No. 13-0660/AR.U.S. v. Nathan A. SNOWDEN.CCA 20111030.

No. 13-0661/AF.U.S. v. Joshua J. LUI.CCA S32104.

INTERLOCUTORY
ORDERS

No. 13-0265/NA.U.S. v. Decker B. JORDAN.CCA 201100621.Appellant's
second motion to extend time
to file a motion for reconsideration granted to August 19, 2013, and absent extraordinary circumstances, no
further extension of time will be granted in this case.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-211

Thursday, July 25,
2013

APPEALS -
SUMMARY DISPOSITIONS

No. 11-0166/AF.U.S. v. Harley T. LUSK.CCA S31624.On further consideration of the granted
issues, 71 M.J. 466 (C.A.A.F.
2012), and in view of United States v. Tearman,
72 M.J. 54 (C.A.A.F. 2013),
it is ordered that the decision of the United States Air Force Court of
Criminal Appeals is affirmed.

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0547/AR.U.S. v. VivekBHATTI.CCA
20121044.

No. 13-0577/AR.U.S. v. Steven R. SMALLEY.CCA 20120738.

No. 13-0586/AR.U.S. v. Michael S. KELLAM.CCA 20120518.

No. 13-0587/AR.U.S. v. Dean A. MURRIETTA.CCA 20120493.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0656/NA.U.S. v. Daniel L. MURPHY.CCA 201200486.

MANDATES
ISSUED

No. 12-0604/NA.U.S. v. Richard R. MOTT.CCA 200900115.

No. 12-5003/MC.U.S. v. Leslie D. PORTER.CCA 201100188.

No. 13-5001/AR.U.S. v. Nicholas R. SCHELL.CCA 20110264.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-210

Tuesday, July 23,
2013

APPEALS -
SUMMARY DISPOSITIONS

No. 11-0474/AR.U.S. v. Anthony P. KNOWLAND.CCA 20071405.On consideration of the petition for grant of review of the decision of
the United States Army Court of Criminal Appeals, and in view of United
States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Tunstall,
72 M.J. 191 (C.A.A.F.
2013), it is ordered that said petition is hereby granted, and

the decision of the United States Army Court of
Criminal Appeals is affirmed.

No. 11-0558/AR.U.S. v. Alvaro GARCIA, Jr.CCA 20080839.On consideration of the petition for grant of
review of the decision of the United States Army Court of Criminal Appeals, and
in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013), and United States v. Gaskins,
72 M.J. 225 (C.A.A.F.
2013), it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY
COURT ERRED IN DETERMINING THE CHARGE SHEET AND GOVERNMENT CASE-IN-CHIEF
REASONABLY PLACED APPELLANT ON NOTICE OF THE TERMINAL ELEMENT WHERE THE ONLY
MENTION OF THE TERMINAL ELEMENT WAS DURING THE MILITARY JUDGE'S FINDINGS
INSTRUCTIONS.

The decision of the
United States Army Court of Criminal Appeals is reversed.The findings of guilty to Charge II and
Specifications 2 and 3 thereunder and the sentence
are set aside.The record is returned to
the Judge Advocate General of the Army.A rehearing on the affected charge and specifications is authorized.

BAKER, Chief Judge (dissenting):

I would affirm based on the analysis of the
United States Army Court of Criminal Appeals and based on my dissenting
opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)
(Baker, J., dissenting, and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012)
(Baker, C.J., dissenting).

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0424/AF.U.S. v. Brian W. GROCKI.CCA 37982.

No. 13-0584/AR.U.S. v. Clyde W. ANTHONY.CCA 20120955.

No. 13-0585/AR.U.S. v. Steven J.
MCDERMOTT.CCA 20120671.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0655/AR.U.S. v. Luis A. ORTIZ.CCA 20110335.

INTERLOCUTORY
ORDERS

No. 13-0605/MC.U.S. v. Hector Y. APARCIO.CCA 201200408.On consideration of Appellant's motion to correct errata, it is ordered that said motion is hereby granted.Appellee will file an answer to the corrected supplement to
the petition for grant of review on or before August 12, 2013.

No. 13-0609/AR.U.S. v. Gregory R. MIEDEMA.CCA 20110496.Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted,up to and including August 1, 2013,
and absent extraordinary circumstances,
no further extension of time will be granted in this case.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-209

Monday, July 22, 2013

APPEALS -
SUMMARY DISPOSITIONS

No. 12-0229/AR.U.S. v. Rodger S. DANES.CCA 20091072.On further consideration of the granted
issue, 72 M.J. 91 (C.A.A.F.
2013), and in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013) and United States v. Gaskins,
72 M.J. 225 (C.A.A.F.
2013), it is ordered that the decision of the United States Army Court of
Criminal Appeals is reversed as to Charge III, Specifications 2, 4, and 6, and
the sentence.*The findings
of guilty to Specifications 2, 4, and 6 of Charge III are set aside.The remaining findings are affirmed.The record is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal Appeals.That court may either dismiss Specifications
2, 4, and 6 of Charge III and reassess the sentence based on the affirmed
findings, or it may order a rehearing on the affected charge and the sentence.**

* BAKER, Chief Judge
(dissenting):

Although I agree with the majority's analysis
on the Order's footnote, I would affirm based on my dissenting opinions in United
States v. Fosler, 70 M.J.
225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and
United States v. Humphries, 71M.J. 209, 217 (C.A.A.F. 2012)
(Baker, C.J., dissenting).

_________________________________

** We
note that the Court of Criminal Appeals determined that Appellant was on notice
of the terminal element in the contested Article 134 offenses in part because
of the providence inquiry on a similar uncontested Article 134 offense.United States v. Danes,
No. ARMY 20091072, 2012 CCA LEXIS 351, at
*3-*5, 2012 WL 4052518, at *2 (A. Ct. Crim. App. Sep. 11, 2012)(unpublished).Conceding that the providence inquiry may establish that he was aware
that a terminal element exists under Article 134, Appellant argues that there
is no indication that he was on notice of the government's specific theory of
culpability for the contested offenses.We agree with Appellant."[A] guilty plea to a lesser-included offense may be used
to establish facts and elements common to both the greater and lesser offense within the same specification."United States v. Grijalva, 55 M.J. 223, 227 C.A.A.F. 2001) (quotation marks and citations omitted).However, an accused's
statements during a guilty plea inquiry on one offense may not be used as
evidence by the government to prove a greater or separate offense to which the
accused has pleaded not guilty.United States v. Resch, 65 M.J. 233 (C.A.A.F. 2007); United
States v. Ramelb, 44 M.J.
625, 629 (Army Ct. Crim. App. 1996).In this case, the providence inquiry with respect to a similar
Article 134 offense is only "evidence of defense counsel's general awareness of
the terminal element" for the contested specifications, which, without more, is
insufficient notice of the terminal element.Goings, 72 M.J.
at 208.Such evidence fails to
place Appellant "on notice as to which clause or clauses of the terminal
element he needed to defend against."Id.

No. 12-0336/AR.U.S. v. Christopher L. COVINGTON.CCA 20090877.On further consideration of the granted
issue, 72 M.J. 92 (C.A.A.F.
2013), and in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013), and United States v. Gaskins,
72 M.J. 225 (C.A.A.F. 2013),
it is ordered that the decision of the United States Army Court of Criminal
Appeals is hereby affirmed.

No. 12-0448/MC.U.S. v. Jonathan E. LONSFORD.CCA 201100022.On
further consideration of the granted issue, 72 M.J.
255 (C.A.A.F. 2013), and in view of United States
v. Goings, 72 M.J. 202 (C.A.A.F.
2013), it is ordered that the decision of the United States Navy-Marine Corps
Court of Criminal Appeals is hereby affirmed.

No.
12-0617/MC.U.S. v. Hugo I. VALENTIN.CCA 201000683.On further consideration
of the granted issue, __ M.J. __ (C.A.A.F. May 16, 2013), and in view of United States v.
Goings, 72 M.J. 202 (C.A.A.F.
2013) and United States v. Gaskins, 72 M.J.
225 (C.A.A.F. 2013), it is ordered that the decision
of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as
to Charge II and its specifications and the sentence.The findings of guilty to Charge II and its
specifications are set aside.The
remaining findings are affirmed.The
record is returned to the Judge Advocate General of the Navy for remand to the
Court of Criminal Appeals.That court
may either dismiss Charge II and its specifications and reassess the sentence
based on the affirmed findings, or it may order a
rehearing on the affected charge and the sentence.*

*BAKER, Chief Judge (dissenting):

I would affirm based on the analysis of the
United States Navy-Marine Corps Court of Criminal Appeals and based on my
dissenting opinions in United States v. Fosler,
70 M.J. 225, 240 (C.A.A.F.
2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012)
(Baker, C.J., dissenting).

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0581/AF.U.S. v. Jason K. PENDERGAST.CCA 38047.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0650/AF.U.S. v. Julian M. FUENTES.CCA S32103.

No. 13-0651/AR.U.S. v. John T. TRAVIS.CCA 20120608.

No. 13-0652/NA.U.S. v. Jesse O. COOPER.CCA 201200470.

No. 13-0653/AR.U.S. v. JohnellJOLIVETTE.CCA
20120938.

No. 13-0654/AF.U.S. v. Jared R. BURDIN.CCA 38033.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-208

Friday, July 19, 2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0490/AR.U.S. v. Brandon J. RYLES.CCA 20110095.

No. 13-0580/AR.U.S. v. Burt A. LANCASTER.CCA 20120386.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0648/AR.U.S. v. Todd R. HUNT II.CCA 20120828.

No. 13-0649/AR.U.S. v. Jason W. MCCARVER.CCA 20120490.

INTERLOCUTORY
ORDERS

No. 13-0283/AF.U.S. v. Timothy L. MERRITT.CCA 37608.Appellee's motion to strike Appellant's attachment of facts
outside the record but included in the joint appendix and Appellant's brief is granted.

No. 13-0602/AR.U.S. v. Thomas C. FLESHER.CCA 20110449.Appellant's
motion to extend time to file a supplement to the petition for grant of review
granted, but only up to and including
August 2, 2013, and absent
extraordinary circumstances, no further extension of time will be granted in
this case.

No. 13-7001/AR.U.S. v. Hasan
K. AKBAR.CCA 20050514.Appellant's motion to extend time to file a
brief granted to August 21, 2013.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-207

Thursday, July 18,
2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 10-0649/AF.U.S. v. Dean E. THOMPSON,
Jr.CCA 37380.

No. 13-0546/AR.U.S. v. Ronald A. JOHNSON.CCA 20120395.

No. 13-0554/AR.U.S. v. Trevor R. CHANEY.CCA 20110799.

No. 13-0568/AR.U.S. v. Brian L.
KIMBERLING.CCA
20111169.

No. 13-0569/AR.U.S. v. Fermin R. MEDINA.CCA 20110947.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0647/MC.U.S. v. Javier B. FUENTES.CCA 201300006.

INTERLOCUTORY
ORDERS

No. 13-5006/AF.Airman First Class LRM, USAF, Appellant v.
Lieutenant Colonel Joshua E. KASTENBERG, USAF, Military Judge, Appellee and
Airman First Class Nicholas E. Daniels, USAF, Real Party In Interest.CCA 2013-05.On consideration of the Motion for Stay of
Proceedings in the case of United States v. Daniels, it is ordered that
said motion is hereby dismissed as moot.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-206

Wednesday, July 17,
2013

APPEALS -
SUMMARY DISPOSITIONS

No. 13-0124/MC.U.S. v. WilliamC. DALTON.CCA 201100521.On further consideration of the granted
issue, 72 M.J. 83 (C.A.A.F. 2013)(order granting
review), and the briefs filed by the parties, it is ordered that the decision
of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

No. 13-0157/AF.U.S. v. Jimmy L. WILSON.CCA 37897.On consideration of the petition for grant of review of
the decision of the United States Air Force Court of Criminal Appeals, it isordered that said petition is hereby
granted on the following issue:

WHETHER ARTICLE 12,
UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF
THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN
A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES;
AND, WHETHER THE RECORD IN THIS CASE PERMITS SUCH A CONCLUSION TO BE DRAWN
WITHOUT THE NECESSITY OF FURTHER FACT-FINDING.

The decision of the
Court of Criminal Appeals is reversed, and the record of trial is returned to
the Judge Advocate General of the Air Force for remand to the Court of Criminal
Appeals for consideration of the specified issue.[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]

No. 12-0408/MC.U.S. v. Lawrence G.
HUTCHINS III.CCA 200800393.On
consideration of Appellee's
petition for reconsideration of this Court's decision, and Appellant's motion
to issue the mandate of the Court forthwith, it is
ordered that Appellee's petition for reconsideration be, and the same is,
hereby denied, and Appellant's motion to issue the mandate of the Court
forthwith be, and the same is, hereby granted.

INTERLOCUTORY
ORDERS

No. 13-0644/AR.U.S. v. Alfred L. PEMBERTON.CCA 20110127.On
consideration of Appellant's motion to extend time to file the supplement to
the petition for grant of review, it is ordered that said motion is hereby
granted to August 5, 2013.

MANDATES
ISSUED

No. 12-0408/MC.U.S. v. Lawrence G.
HUTCHINS III.CCA
200800393.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-205

Tuesday, July 16,
2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0461/AR.U.S. v. Brian S. MULLINS.CCA 20110133.

No. 13-0527/AF.U.S. v. Alexandre
G. ZURITA.CCA
37717.

No. 13-0555/AR.U.S. v. Andrew H. HOLMES.CCA 20110838.

No. 13-0557/AR.U.S. v. Travis F. CARDEN.CCA 20120947.

No. 13-0558/AR.U.S. v. Tyrone L. KIRK.CCA 20121049.

No. 13-0559/AR.U.S. v. Steven D. PATTERSON.CCA 20120927.

No. 13-0560/AF.U.S. v. Matthew J. MANGAN.CCA 38223.

No. 13-0561/NA.U.S. v. Jason L. NIX.CCA 201300061.

No. 13-0562/AR.U.S. v. Bud A. MITCHELL.CCA 20120683.

No. 13-0567/AR.U.S. v. Alexei L. SUND.CCA 20120641.

PETITIONS FOR
GRANT OF REVIEW FILED

No. 10-0659/AF.U.S. v. Garland R. STEWART.CCA S31685.*

No. 13-0420/AF.U.S. v. Travis A. SCHMIDT.CCA 38220.*

No. 13-0644/AR.U.S. v. Alfred L.
PEMBERTON.CCA 20110127.

No. 13-0645/AR.U.S. v. Kayla R. HORNE.CCA 20120188.

No. 13-0646/AF.U.S. v. Michael J. ROY.CCA 38089.

INTERLOCUTORY
ORDERS

No. 13-0642/AF.U.S. v. Brent J. MIZE.CCA 37993.On
consideration of the motion filed by Major Scott W. Medlyn,
for leave to withdraw as appellate defense counsel, it appears that the Judge
Advocate General has assigned another counsel to represent Appellant and that
the new counsel has assumed representation of said Appellant.Accordingly, it is ordered that said motion
is hereby granted.

______________________________

*Second petition filed in this case.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-204

Monday, July 15, 2013

PETITIONS
FOR GRANT OF REVIEW - SUMMARY DISPOSITIONS

No. 13-0531/AF.U.S. v. Matthew B.
ALBRIGHT.CCA 37961.On consideration of
the petition for grant of review of the decision of the United States Air Force
Court of Criminal Appeals, we note that on May 23, 2013, the Court of Criminal
Appeals ordered this case to be returned to it for reconsideration out of time.
Appellant filed his petition in this
Court on May 28, 2013.We further note
that the Court of Criminal Appeals has not yet issued a decision on
reconsideration.Accordingly, it is ordered that said petition is hereby dismissed without
prejudice to Appellant's right to seek review in this Court after final action
by the Court of Criminal Appeals on reconsideration.The record is returned to the Judge Advocate
General of the Air Force for remand to the Court of Criminal Appeals for
further review in accordance with its order of May 23, 2013.

No. 13-0265/NA.U.S. v. Decker B. JORDAN.CCA 201100621.On consideration of Appellant's motion for
extension of time to file a petition for reconsideration of this Court's order
issued June 18, 2013, it is ordered that said motion is hereby granted, up to
and including July 30, 2013.

No. 13-0329/AR.U.S. v. Slade
MCKIM-BURWELL.CCA
20120719.

No. 13-0435/AR.U.S. v. Gary D. WARNER.CCA 20120499.

On consideration of the motions filed by
Captain Susrut A. Carpenter, for leave to withdraw as appellate defense counsel
in the above cases, it appears that the Judge Advocate General has assigned
other counsel to represent Appellants and that the new counsel have assumed
representation of said Appellants. Accordingly, it is ordered that said motions
are hereby granted.

On consideration of the motions filed by Major
Scott W. Medlyn, for leave to withdraw as appellate defense counsel in the
above cases, it appears that the Judge Advocate General has assigned other
counsel to represent Appellants and that the new counsel have assumed
representation of said Appellants. Accordingly, it is ordered that said motions
are hereby granted.

No. 13-0588/AR.U.S. v. John P. FIGUEROA.CCA 20110951.Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted, up
to and including July 25, 2013, and absent extraordinary circumstances, no further extension of time
will be granted in this case.

No. 13-0637/NA.U.S. v. Thomas C. MOORE.CCA 201200332.Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 31, 2013.

No. 13-0640/NA.U.S. v. Michael C. MESICK.CCA 201200385.Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to August 1, 2013.

No. 13-0641/AR.U.S. v. Joseph A. HERNANDEZ.CCA 20111012.Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to August 1, 2013.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-203

Friday, July 12, 2013

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0640/NA.U.S. v. Michael C. MESICK.CCA 201200385.

No. 13-0641/AR.U.S. v. Joseph A.
HERNANDEZ.CCA 20111012.

No. 13-0642/AF.U.S. v. Brent J. MIZE.CCA 37993.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-202

Thursday, July 11,
2013

APPEALS -
SUMMARY DISPOSITIONS

No. 11-0537/MC.U.S. v. Christopher M.
HARRIS.CCA 201000341.On further consideration of the granted issue, 72 M.J.
259 (C.A.A.F. 2013), and in view of United States
v. Gaskins, 72 M.J. 225 (C.A.A.F.
2013), United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), and United States v. Tunstall,
72 M.J. 191 (C.A.A.F.
2013), it is ordered that the decision of the United States Army Court of
Criminal Appeals is hereby affirmed.

No. 11-0638/AR.U.S. v. Edgar E. MARTINEZ.CCA 20090582.On further consideration of the granted
issue, 72 M.J. 167 (C.A.A.F.
2013), and in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013), and United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013), it is ordered that the decision of the
United States Army Court of Criminal Appeals is hereby affirmed.

No. 12-0328/AR.U.S. v. Bret A. GLOWTH.CCA 20090925.On consideration of the petition for grant of review of the decision of
the United States Army Court of Criminal Appeals, and in view of United
States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), and United
States v. Tunstall, 72 M.J.
191 (C.A.A.F. 2013), it is ordered that said petition
is granted on the following issue:

WHETHER THE CHARGE
AND ITS SPECIFICATIONS FAIL TO STATE OFFENSES BECAUSE THE SPECIFICATIONS DO NOT
ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE "TERMINAL ELEMENT" AS
REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

The decision of the
United States Army Court of Criminal Appeals is affirmed.*

*To the extent that the
Court of Criminal Appeals relied on evidence of the defense counsel's general
awareness of the terminal element to affirm the findings, it was in error. Goings,
72 M.J. at 208. Notice of the terminal element was extant in
the record based on witness testimony and the defense strategy on
cross-examination.

No. 13-0116/AR.U.S. v. Travis L. SMITH.CCA 20101040.On further consideration of the granted
issue, 72 M.J. 92 (C.A.A.F.
2013), and in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013) and United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013), it is ordered that the decision of the
United States Army Court of Criminal Appeals is hereby affirmed.

No. 13-0273/AF.U.S. v. Christopher D. WALTERS.CCA 37873.On further consideration of the granted
issue, 72 M.J. 247 (C.A.A.F.
2013), and in view of United States v. Goings, 72 M.J.
202 (C.A.A.F. 2013), and United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013), it is ordered that the decision of the
United States Air Force Court of Criminal Appeals is hereby affirmed.*

*We note that the Court
of Criminal Appeals determined that there was notice of the missing terminal
element, in part, because "after the military judge accepted the pleas of
guilty, the appellant litigated the second specification of communicating a
threat knowing full well that the offense required proof of the terminal
elements because the military judge had expressly told him that it did." United States v. Walters, 71 M.J.
695, 697 (A.F. Ct. Crim. App. 2012). Although
"a guilty plea to a lesser-included offense may be used to establish facts and
elements common to both the greater and lesser offense within the same
specification," United States v. Grijalva, 55 M.J. 223, 227 (C.A.A.F. 2001)
(quotation marks and citations omitted), an accused's statements during a guilty plea inquiry on
one offense may not be used as evidence by the government to prove a greater or
separate offense to which the accused has pleaded not guilty. United States v. Resch, 65 M.J. 233 (C.A.A.F. 2007); United
States v. Ramelb, 44 M.J.
625, 629 (Army Ct. Crim. App. 1996). In this case, the providence
inquiry with respect to a similar Article 134 offense is only "evidence of
defense counsel's general awareness of the terminal element" for the contested
specifications, which, without more, is insufficient notice of the terminal
element for the instant offense. Goings, 72 M.J. at 208. Such evidence fails to place Appellant
"on notice as to which clause or clauses of the terminal element he needed to
defend against."

I.WHETHER SPECIFICATION 2 OF THE ADDITIONAL
CHARGE IS VOID FOR VAGUENESS BECAUSE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT
THE CHARGED CONDUCT OF POSSESSING "MULTIPLE IMAGES OF NUDE MINORS AND
PERSONS APPEARING TO BE NUDE MINORS" WAS FORBIDDEN AND SUBJECT TO CRIMINAL
ACTION.

II.WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW
OR FACT TO QUESTION APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF THE
ADDITIONAL CHARGE, WHICH ALLEGES THAT APPELLANT POSSESSED "MULTIPLE IMAGES
OF NUDE MINORS AND PERSONS APPEARING TO BE NUDE MINORS."

On consideration of the motions filed by
Captain Travis K. Ausland, for leave to withdraw as
appellate defense counsel in the above cases, it appears that the Judge
Advocate General has assigned other counsel to represent Appellants and that
the new counsel have assumed representation of said Appellants.Accordingly, it is ordered that said motions are
hereby granted.

No. 13-0622/AF.U.S. v. Brent A. SNELL.CCA 37792.Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to July 29, 2013.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-199

Monday, July 8, 2013

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0620/AR.U.S. v. Cavin
B. MCKEN.CCA
20121019.

No. 13-0621/AR.U.S. v. James R. REMMERS.CCA 20120068.

No. 13-0622/AF.U.S. v. Brent A. SNELL.CCA 37792.

No. 13-0623/AR.U.S. v. Angel L. RIVERA.CCA 20120083.

No. 13-0624/AR.U.S. v. Shawn N. DELLISS.CCA 20120349.

INTERLOCUTORY
ORDERS

No. 13-0329/AR.U.S. v. Slade MCKIM-BURWELL.CCA
20120719.Appellant's second motion to extend time to
file a brief granted,up to and including July 11, 2013.

No. 13-0435/AR.U.S. v. Gary D. WARNER.CCA 20120499.Appellant's
second motion to extend time
to file a brief granted,up to and including July 11, 2013,
and no further extension of time will
be granted in this case.

No. 13-0571/AR.U.S. v. Nolan R. MOGG.CCA 20100943.Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted,up to and including July 18, 2013,
and absent extraordinary
circumstances, no further extension of time will be granted in this case.

No. 13-0573/AR.U.S. v. Calvin J.
DAVENPORT.CCA 20081102.Appellant's second motion to extend time to file a supplement to the
petition for grant of review granted, but
only up to and including July 23, 2013, and absent extraordinary circumstances, no further extension of time
will be granted in this case.

No. 13-0618/AF.U.S. v. Joseph M. BURKHART.CCA 37668.Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to July 23, 2013.

No. 13-0619/NA.U.S. v. Gabriel A. MORA.CCA 201200335.Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 25, 2013.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-198

Friday, July 5, 2013

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0619/NA.U.S. v. Gabriel A. MORA.CCA 201200335.

INTERLOCUTORY
ORDERS

No. 13-0091/AR.U.S. v. Alexander LOYA.CCA 20090770.On consideration of Appellant's motion to extend time to file the petition for
reconsideration, motion for leave to file petition for reconsideration out of
time, and motion for leave to supplement the petition for reconsideration with
additional documents, it is ordered that said motions are
hereby denied, and the petition for reconsideration
is hereby dismissed as untimely filed.

No. 13-5009/AF.U.S. v. Alan J. LINDGREN.CCA 37928.Notice is hereby
given that a certificate for review of the decision of the United States Air
Force Court of Criminal Appeals was filed under Rule 22 this date on the
following issues:

I.WHETHER APPELLEE
SATISFIED HIS BURDEN TO DEMONSTRATE THAT DEFECTIVE SPECIFICATIONS UNDER ARTICLE
134, UCMJ, MATERIALLY PREJUDICED HIS SUBSTANTIAL RIGHTS WHEN HE WAS PROVIDED
ACTUAL NOTICE OF THE TERMINAL ELEMENT THROUGH AN ARTICLE 32 REPORT RECEIVED
PRIOR TO TRIAL.

II.WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE
DEFECTIVE SPECIFICATIONS UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED
APPELLEE'S SUBSTANTIAL RIGHTS 1) BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON
THE MISSING ELEMENT WAS "OVERWHELMING AND ESSENTIALLY UNCONTROVERTED;" 2) BY
FAILING TO FIND NOTICE OF THE MISSING ELEMENT WAS EXTANT IN THE RECORD; AND 3)
BY CONFLATING ERROR IN THE LACK OF NOTICE IN THE SPECIFICATIONS WITH MATERIAL
PREJUDICE CAUSED BY THE MISSING TERMINAL ELEMENT.

III. WHETHER
THIS HONORABLE COURT SHOULD APPLY THE FOURTH PRONG OF THE PLAIN ERROR ANALYSIS
AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. OLANO,
507 U.S. 725 (1993), WHEN ASSESSING WHETHER THE DEFECTIVE SPECIFICATIONS UNDER
ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS IN THIS
CASE.

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0429/AR.U.S. v. Shaun M.
WILLOUGHBY.CCA
20110100.

No. 13-0489/AF.U.S. v. Zachary R. FLESTER.CCA S31965.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0615/AR.U.S. v. Brian K. DEWEESE.CCA 20121017.

No. 13-0616/AR.U.S. v. Brian D. WHITE.CCA 20110660.

No. 13-0617/AF.U.S. v. Jose M.
SANTANA-PENA.CCA 37931.

No. 13-0618/AF.U.S. v. Joseph M. BURKHART.CCA 37668.

INTERLOCUTORY
ORDERS

No. 13-0230/AF.U.S. v. Adam E. SERNA.CCA 37822.Appellant's
motion for reconsideration of this Court's order issued on March 5, 2013 is
denied.

No. 13-0498/AF.U.S. v. Christopher J.
MARTIN.CCA S32035.On consideration of Appellant's motion to
withdraw the petition for grant of review without prejudice and motion to file
supplemental issue, it is ordered that said motion to withdraw the petition for
grant of review without prejudice is hereby granted, and said motion to file
supplemental issue is denied as moot.

No. 13-0537/AR.U.S. v. Joseph A. SMITH.CCA 20120329.On
consideration of Appellant's motion to withdraw the petition for grant of
review, it is ordered that said motion is hereby denied without prejudice to
filing a subsequent motion that complies with Rule 21(f).

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-196

Tuesday, July 2, 2013

APPEALS –
SUMMARY DISPOSITIONS

No. 13-0390/AR.U.S. v. Dyana
T. THOMAS, Sr.CCA 20100182.On consideration of the petition for grant of
review of the decision of the United States Army Court of Criminal Appeals, we
conclude that the Army Court erred in finding that the government provided
notice to Appellant of the terminal element for the two contested
fraternization specifications.The
military judge's identification of clauses 1 and 2 of Article 134, UCMJ, during the providence inquiry did not place Appellant
on notice of the government's theory of liability for the contested
fraternization specifications.At most,
the providence inquiry merely made Appellant generally aware of the law, which
does not provide notice of the terminal element.SeeUnited States v. Goings, 72 M.J. 202 (C.A.A.F.
2013); cf.United States v. Gaskins, 72 M.J.
225 (C.A.A.F. 2013).Accordingly, it is ordered that the petition is granted on the following
issue:

WHETHER A PROVIDENCE
INQUIRY CAN CURE THE PREJUDICE FROM THE GOVERNMENT'S FAILURE TO ALLEGE THE
TERMINAL ELEMENT OF TWO CONTESTED
ARTICLE 134, UCMJ, OFFENSES.

The decision of the United States Army Court
of Criminal Appeals is reversed as to Specifications 1 and 2 of Charge VII and
the sentence.The findings of guilty to
Specifications 1 and 2 of Charge VII and the sentence are set aside.The remaining findings are affirmed.The record is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal Appeals.That court may either dismiss Specifications
1 and 2 of Charge VII and reassess the sentence based on the affirmed findings,
or it may order a rehearing on the affected charge and the sentence.*[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]

* BAKER, Chief Judge (dissenting):

I would affirm based
on the opinion of the United States Army Court of Criminal Appeals and my
dissenting opinions in United States v. Fosler,
70 M.J. 225, 240 (C.A.A.F.
2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012)
(Baker, C.J., dissenting).

On consideration of
the motions filed by Dwight H. Sullivan, Esq., for leave to withdraw as
appellate defense counsel, it appears that the Judge Advocate General has
assigned other counsel to represent Appellants and that new counsel have
assumed representation of said Appellants. Accordingly, it is ordered that said
motions are hereby granted.

No. 12-0501/AF.U.S. v. Jessica E.
MCFADDEN.CCA 37438.

No. 13-0492/AF.U.S. v. Taylor T. STICKNEY.CCA S32106.

No. 13-0502/AF.U.S. v. Sebastian P.
LABELLA.CCA 37679.

No. 13-0503/AF.U.S. v. Valentino T. LEE.CCA S32009.

No. 13-6004/AF.U.S. v. Samuel A. WICKS.CCA 2013-08.

On consideration of
the motions filed by Major JaRai
A. Williams, for leave to withdraw as appellate defense counsel, it appears
that the Judge Advocate General has assigned other counsel to represent
Appellants and that new counsel have assumed representation of said Appellants.
Accordingly, it is ordered that said motions are hereby granted.

No. 13-0609/AR.U.S. v. Gregory R. MIEDEMA.CCA 20110496.Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to July 22,
2013.

No. 13-5006/AF.Airman First Class LRM,
USAF, Appellant v. Lieutenant Colonel Joshua E. KASTENBERG,
USAF, Military Judge, Appellee and Airman First Class
Nicholas E. Daniels, USAF, Real Party In Interest.CCA 2013-05.On
consideration of the motion filed by Dwight H. Sullivan, Esq., for leave to
withdraw as counsel for the Real Party In Interest, it appears that another
counsel has been assigned to represent the Real Party In Interest and that the
new counsel has assumed representation of said Real Party In Interest.
Accordingly, it is ordered that said motion is hereby granted.

UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES

DAILY JOURNAL

No. 13-195

Monday, July 1, 2013

PETITIONS
FOR GRANT OF REVIEW DENIED

No. 13-0338/AF.U.S. v. Dalton S. DUGEN.CCA 37708.

No. 13-0469/AF.U.S. v. David C. VAZQUEZ.CCA 37647.

No. 13-0501/AF.U.S. v. Aaron J. HETMAN.CCA 37853.

No. 13-0542/AR.U.S. v. Norberto GALLEGO.CCA 20120402.

No. 13-0543/AR.U.S. v. Walter J. CLEMMONS.CCA 20120008.

PETITIONS
FOR GRANT OF REVIEW FILED

No. 13-0608/AR.U.S. v. Bladimir
S. RODRIGUEZ.CCA 20120128.

No. 13-0609/AR.U.S. v. Gregory R. MIEDEMA.CCA 20110496.

INTERLOCUTORY
ORDERS

No. 13-0605/MC.U.S. v. Hector Y. APARCIO.CCA 201200408.Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to July 12,
2013.

No. 13-0607/AF.U.S. v. Matthew J. SOUSA.CCA 37889.Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to July 18, 2013.